Court File and Parties

COURT FILE NO.: 156/16 DATE: 2017/06/29

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Her Majesty the Queen Respondent J. Spangenburg, for the Provincial Crown F. Brennan, for the Federal Crown

- and -

Rueben Russell Garcia Applicant R. Ellis, for the applicant

HEARD: April 20 and 21, 2017

RULING ON APPLICATION PURSUANT TO SECTION 11(b) AND SECTION 24(1) OF THE CHARTER

A. K. MITCHELL, J.

Overview

[1] This application is brought by the defendant claiming a breach of s.11(b) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.11 (the “Charter”) and seeking a stay of these proceedings pursuant to s. 24(1) of the Charter.

[2] The applicant argues his constitutional rights have been infringed due to the unreasonable delay in completing the preliminary hearing and bringing this matter to trial. At the time the application was argued, the jury trial was scheduled to proceed during the sittings commencing May 23rd 2017 with an anticipated jury verdict on June 2, 2017. Since this application was argued and prior to release of my decision, the trial was adjourned on consent of the parties with the defendant waiving his s. 11(b) rights with respect to the further delay occasioned by the adjournment to allow time for release of this decision.

[3] The parties have agreed that for purposes of calculating the period of delay on this application, the end date is deemed to be June 2, 2017.

Background

[4] The applicant stands indicted on charges related to the August 15, 2014 explosion at a townhouse located at 1217 Southdale Road East in the City of London, Ontario. The damage caused by the explosion was significant. Windows, siding and substantial parts of the interior and exterior walls of the townhouse were blown off. The total cost of the damage to the townhouse has been estimated at $570,000. Due to the extensive damage caused by the explosion, the townhouse and five adjoining units were demolished.

[5] During their investigation of the blast, police discovered inside the townhouse evidence of a marijuana butter production operation and in excess of 17 pounds of dried marijuana and packaging material consistent with a large-scale trafficking operation.

[6] As a result of their investigation, police identified the applicant and Moustafa Eldogdog as the persons responsible for the explosion. The Crown’s theory of the case is that the marijuana extraction operation was a joint venture carried on by the applicant and Mr. Eldogdog.

[7] On August 18, 2014 the applicant and Mr. Eldogdog were charged jointly with four counts of possession of a substance included in Schedule II for the purpose of trafficking, contrary to subsection 5(2) of the Controlled Drugs and Substances Act (the “CDSA”); one count of production of a substance included in Schedule II, contrary to subsection 7(1) of the CDSA; one count of Arson/Disregard for Human Life, contrary to section 433 (a) of the Criminal Code of Canada (the “Code”); one count of arson causing property damage contrary to section 434 of the Code; one count of negligent arson causing damage contrary to subsection 436(1) of the Code; and one count of occupant causing damage contrary to section 441 of the Code.

[8] The applicant turned himself into police on August 18, 2014. He was released on bail following a show cause hearing on August 20, 2014. A warrant was issued for the arrest of Mr. Eldogdog. He remained at large until he turned himself in 11 months later on July 31, 2015.

[9] The applicant elected to proceed by judge and jury with a preliminary inquiry in the Ontario Court of Justice (“OCJ”). The applicant ultimately consented to committal in November 2016.

Timeline of Proceedings

Pre-Preliminary Inquiry

[10] The following is a summary of the applicant’s court attendances prior to Mr. Eldogdog’s arrest and commencement of the preliminary inquiry:

August 18, 2014 (1 day): Neither the Provincial nor Federal Crown consented to release. Show cause hearing was required on another day.

August 19, 2014 (1 day): Federal charges had not yet been laid. Matter was adjourned for a bail hearing.

August 20, 2014 (14 days): Adjourned to confirm retainer and to receive and review disclosure.

September 5, 2014 (27 days): Adjourned to receive and review disclosure and have Crown resolution meeting.

October 24, 2014 (77 days): Defence requested a lengthy adjournment to request and review disclosure. To support the adjournment request, the defence indicated the matter is “complex”. Defence had not yet formally requested CDSA-related disclosure in writing.

January 9, 2015 (41 days): Defence advised they had not received ITO, but Crown advised it was released on October 30, 2014. Defence requested an adjournment to conduct a resolution meeting with the Federal Crown and to receive and review further disclosure.

February 20, 2015 (42 days): Defence advised they had received all disclosure and were prepared to set a resolution meeting with the Federal Crown. Meeting set for March 17th. Earlier date of March 3rd not available to defence. The Court offered a return date of March 20th but defence counsel requested March 27, 2015.

April 10, 2015 (10 days): Adjourned to case management to conduct a judicial pretrial booked by the defence for April 20, 2015.

April 20, 2015 (18 days): Judicial pretrial held. Adjourned to set a date for preliminary hearing or resolution.

May 8, 2015 (7 days): Adjourned for defence to provide statement of issues and to set a date for preliminary inquiry. Defence indicated they will be consenting to committal with respect to the CDSA charges and do not need to hear from any police officers at the preliminary hearing.

May 15, 2015 (7 days): Adjourned to allow defence to narrow witness list and set date for preliminary inquiry. Defence had not yet filed a statement of issues. Matter not scheduled due to a lack of time in date setting and defence indicating they would further narrow their witness list. Defence confirmed they will be consenting to committal and only require civilian witnesses for the purpose of the preliminary inquiry with respect to the Code charges.

June 5, 2015 (14 days): Adjourned to conduct focus hearing on June 17, 2015.

June 19, 2015 (7 days): Matter scheduled for trial in error by defence. Adjourned to set date for discovery preliminary inquiry.

June 26, 2015 (123 days): Matter scheduled for discovery preliminary inquiry on October 28, 2015.

[11] The total time from the charge to the first day of the preliminary inquiry was 336 days (11 months and 6 days).

Post-Day 1 of the Preliminary Inquiry

[12] Shortly after the applicant’s preliminary inquiry date was fixed, Mr. Eldogdog turned himself in and came before the court. He also elected to proceed to trial by judge and jury with a preliminary inquiry in the OCJ. However, unlike Mr. Garcia, he did not consent to committal.

[13] So as to preserve the applicant’s preliminary inquiry date, Mr. Eldogdog’s preliminary inquiry was fixed for the same day. Because the applicant’s preliminary inquiry was set for discovery only no justice was available to preside over the joint preliminary inquiry to determine committal for Mr. Eldogdog and the preliminary inquiry did not proceed on October 28, 2015.

[14] A summary of the applicant’s court appearances from the first day of the preliminary inquiry to the date of his committal to stand trial in the Superior Court of Justice (“SCJ”) is as follows:

October 28, 2015 (69 days): Preliminary hearing Day 1. Preliminary hearing adjourned because of an error in setting Mr. Eldogdog’s matter as a discovery preliminary inquiry. Defence confirmed that the applicant was still intending to consent to committal on all charges. The applicant advised he was prepared to proceed on that date and was not waiving his s. 11(b) rights. The earlier date of December 3rd was not available to Mr. Eldogdog and December 23rd was not available to some witnesses.

January 5, 2016 (30 days): Preliminary hearing Day 2.

February 4, 2016 (31 days): Preliminary hearing Day 3.

March 7, 2016 (1 day): Appearance to argue Mr. Eldogdog’s application to adjourn the March 8th continuation of the preliminary inquiry due to a conflict in schedule.

March 8, 2016 (55 days): New dates selected for the continuation of preliminary inquiry on May 2nd and May 19th. The earlier date of March 11th, 2016 was available to all parties except applicant’s counsel. The Federal Crown advised that the remaining civilian witnesses would be called on May 2nd with the experts to be called on May 19th, 2015.

May 2, 2016 (17 days): Preliminary hearing Day 4. Four civilian witnesses subpoenaed for this day but cancelled because defence counsel advised earlier that day he no longer wanted to hear from them. Expert witnesses were not available to testify until May 19th as per original schedule.

May 19, 2016 (32 days): Preliminary hearing Day 5. Fire Marshal’s report filed on consent. Continued cross-examination of fingerprint analyst by counsel for Mr. Eldogdog. Counsel for the applicant participated in cross-examination. Examination of drug experts. No questions were asked by applicant’s counsel. The Crown’s case was closed. The applicant indicated he was ready to make submissions on committal (despite his consent to committal) but understood if Mr. Eldogdog’s counsel required an adjournment. He asked that the matter return as soon as possible.

July 5, 2016 (120 days): Update provided by counsel for Mr. Eldogdog regarding the appointment of counsel to cross-examine a witness.

November 3, 2016 (13 days): Crown calls Detective Addley to give evidence regarding Mr. Eldogdog’s cell phone. Due to a conflict, cross-examination is conducted by third counsel on behalf of Mr. Eldogdog. Applicant’s counsel also cross-examines Detective Addley.

November 16, 2016 (27 days): The applicant was committed to trial prior to submissions for Mr. Eldogdog commenced. Mr. Eldogdog’s counsel made submissions on committal.

[15] The total time from the first day of the preliminary hearing to the applicant’s first appearance in SCJ assignment court was 384 days (12 months and 19 days)

[16] Upon completion of the preliminary inquiry, the Crown severed the accused and proceeded against the applicant and Mr. Eldogdog, separately. The delay in the OCJ from arrest to committal of the applicant to stand trial was 720 days (26 months and 25 days).

[17] Once committed to stand trial in the SCJ, the matter proceeded swiftly. The time in the SCJ from the date of first appearance in assignment court on December 13, 2016 to the anticipated end of trial on June 2, 2017 was 170 days or 5 months and 20 days.

Disclosure Timeline

[18] Disclosure in this case has been released to the applicant as follows:

(a) September 2, 2014 – initial disclosure (Federal). (b) September 4, 2014 – initial disclosure – includes statements from 7 of 8 civilian witnesses listed on the trial readiness certificate for the discovery preliminary inquiry (Provincial). (c) September 9, 2014 – Video Statement and Witness (Federal). (d) October 10, 2014 - Sets 3-4 (Provincial). (e) October 22, 2014 – Video statement of Diana Knez, Jospi Knez and Maureen Vilbar. Video statement of final civilian witness (Provincial). (f) October 23, 2014 – Interview of Knez (Federal). (g) October 28, 2014 – Video Statement of Garcia (Provincial). (h) October 29, 2014 – Ex parte application brought to unseal warrant (Federal). (i) October 30, 2014 – ITO released (Provincial). (j) December 1, 2014 – Set 3B (Federal). (k) December 4, 2014 – Set 6 (Provincial). (l) January 2, 2015 – Cell phone Analysis (Provincial). (m) January 9, 2015 - Cell phone analysis (Federal). (n) May 5, 2015 – Sets 4B-5B (Federal). (o) May 26, 2015 – Set 6B (Federal). (p) August 14, 2015 – photos of Eldogdog upon arrest (Federal). (q) September 8, 2015 – Set 7B (Eldogdog’s interview) (Federal). (r) September 29, 2015 – Sets 7-12; FTR of Eldogdog; FTR of Garcia (Provincial). (s) October 8, 2015 – Fingerprint Analysis (match to Eldogdog) (Provincial). (t) October 22, 2015 – Set 9B (Federal). (u) November 12, 2015 – Expert report (Federal). (v) December 18, 2015 – Notice Report and CV (Federal). (w) February 8, 2016 – Sets 14-15 (Provincial). (x) March 30, 2016 – Officer of Fire Marshal and Emergency Mgmt. Fire Investigation Services (Provincial). (y) May 30, 2016 – Additional Statement from I/O re: cell phone analysis (Federal). (z) June 2, 2016 – Set 17 (Provincial).

[19] The combined Federal and Provincial Disclosure included the following types of evidence:

(a) Civilian witness statements; (b) Emergency Responder witness statements; (c) Police Willstates and Notes; (d) Search warrant application package to search the Townhouse; (e) Four Expert Reports: 1) Fire Marshal report on Cause of Fire; 2) Drug Expert Report on Possession for the Purpose of Trafficking and Production charges; 3) Computer Expert on Cell phone Extraction; and 4) Fingerprint Expert; (f) Photographs; and (g) Certificates of Analysis.

Total Delay

[20] The total delay from arrest and charge being laid to June 2, 2017 was 1,017 days or 33 months and 16 days.

Positions of the Parties

The Applicant’s Position

[21] The applicant submits that no portion of the delay is attributable to him and that the delay was caused entirely by the Crown and the court as a result of the Crown’s decision to proceed jointly against Mr. Garcia and Mr. Eldogdog.

[22] The applicant argues the delay is presumptively unreasonable under the Jordan [1] regime and cannot be saved by a transitional exceptional circumstance under the Morin [2] regime.

[23] The applicant testified in support of his position on the application with a focus on the prejudice he has suffered and continues to suffer as a result of the delay. Prejudice is a consideration under the Morin regime. Mr. Garcia is 38 years of age and graduated from UWO in June 2011 with a BA in Sociology. At the time of his arrest, he was pursuing a career in financial planning. Since his arrest he has found only low-paying work and at present is working at a security company. He argues the increased number of court appearances arising from the delay has substantially increased his legal costs which has led to financial hardship for him and his spouse.

[24] He claims to be subject to virtual house arrest as a result of his strict bail conditions. He is required to reside with his parents and may only be in the community with his spouse or his parents. He resides in the basement of his parents’ home which he says aggravates his asthma.

[25] Mr. Garcia takes issue with the Crown’s decision to proceed jointly against himself and Mr. Eldogdog because his “discovery” preliminary inquiry, which he anticipated would take one day, lasted multiple days spanning more than 12 months once Mr. Eldogdog became involved. Unlike, Mr. Eldogdog, Mr. Garcia at all times agreed to a committal.

The Crown’s Position

[26] The Crown submits that while a total delay of 1,017 days is presumptively unreasonable under Jordan, defence delay brings the net delay below the Jordan ceiling. Alternatively, the Crown argues that should the net delay be found to exceed the presumptive ceiling, the complexity of the case gives rise to exceptional circumstances rebutting the presumption and supporting a finding that the delay is not unreasonable.

[27] The Crown focused its argument on the delay attributable to the defence in the OCJ and in particular the delay arising prior to June 26, 2015.

[28] The Crown concedes that at no time did the applicant expressly waive the acceptable time periods. Nevertheless, the Crown says that most adjournments were at the request of the applicant. The Crown adds there is no basis upon which to find the applicant was prejudiced by the delay. Rather, any prejudice suffered arose from the charges themselves. The Crown points out that the applicant attended all days of the preliminary inquiry rather than consent to committal immediately after the relevant witnesses testified which greatly extended the total delay. The Crown further notes that the applicant admits he received the benefit of hearing from the additional witnesses. In fact, Mr. Garcia cross-examined some of the witnesses relevant only to the case against Mr. Eldogdog. Because the applicant chose to participate in the preliminary inquiry rather than agree to committal and immediately proceed to trial, the Crown argues he has acquiesced and waived any right to rely on s. 11(b) of the Charter.

[29] The Crown asserts that no violation of the applicant’s rights under s. 11(b) of the Charter occurred and that the delay in this case does not fall under either the Morin or Jordan framework for unreasonable delay.

Legal Principles – R. v. Jordan

[30] Section 11(b) of the Charter provides that any person charged with an offence has the right to be tried within a reasonable time. Section 11(b) is designed to protect the rights of accused persons and also the interest of society in the fair and expeditious resolution of criminal proceedings.

[31] The Supreme Court of Canada in Jordan substantially overhauled the Morin s. 11(b) framework. The new framework sets the ceiling beyond which delay is presumptively unreasonable at 30 months for cases in the SCJ and 18 months for cases in the OCJ. As a result of Jordan, the approach to a determination of whether an accused’s right to a fair trial within a reasonable time is now largely formulaic save and except that cases pending at the time of the decision (i.e., transitional cases) require a sensitivity to the parties’ reliance on the earlier Morin regime.

[32] The analytical framework developed in Jordan was well summarized in R. v. Coulter [3] as follows:

a) Calculate the total delay which is the period from the charge [4] to the actual or anticipated date on which the trial ends [5].

b) Subtract the number of days of delay attributable to defence delay which results in the net delay.

A. Defence delay has two components: (1) that arising from defence waiver (which must be clear and unequivocal); and (2) delay caused solely by the conduct of the defence (defence-caused delay). [6]

B. Defence-caused delay is comprised of deliberate and calculated tactics employed by the defence to delay the trial; and conduct directly causing the delay for example where the court and the Crown are ready to proceed but the defence is not. [7] Defence conduct deliberately undertaken to respond to the charge falls outside the scope of defence delay. [8]

c) Compare the net delay to the presumptive ceiling to determine whether the net delay exceeds or falls below the presumptive ceiling.

d) If the net delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption the Crown must establish the existence of exceptional circumstances. Exceptional circumstances lie outside the Crown’s control and fall under two categories - discrete events and particularly complex cases.

A. Discrete events include a medical or family emergency on the part of the accused, an important witness, counsel or the trial judge. A discrete event is reasonably unforeseen or reasonably unavoidable and an event which the Crown cannot reasonably remedy. [9]

B. Particularly complex cases are those where the nature of the evidence or issues (or both) require an inordinate amount of trial and preparation time. The seriousness or the gravity of the offence cannot be relied on to establish that the case is particularly complex. [10]

e) Subtract the delay attributable to discrete events from the net delay leaving the remaining delay.

f) If the remaining delay exceeds the presumptive ceiling, the Crown must establish that the case was particularly complex such that the time the case has taken is justified and the delay is reasonable.

g) If the remaining delay falls below the presumptive ceiling the onus is on the defendant to show that the delay is unreasonable.

h) Transitional cases (i.e., charges arising before July 8, 2016 (the date on which Jordan was released)) must further consider:

A. Where the remaining delay exceeds the presumptive ceiling the court must consider whether the Crown has satisfied the court that the time the case took is justified based on the parties’ reasonable reliance on the law as it previously existed. That is, the parties’ behaviour cannot be judged strictly against the standard of which they had no notice. Considerations of prejudice and the seriousness of the offence can inform the parties’ reliance.

B. Where the remaining delay falls below the presumptive ceiling, the defence must establish it took initiative to move the matter forward and that the period of delay markedly exceeds what was reasonably required.

Analysis

[33] As noted earlier in these reasons, the total period of delay is 1,017 days or 33 months and 16 days. Since the matter will be tried in the SCJ, the presumptive ceiling is 30 months.

What is the defence delay attributable to the applicant for the period pre-Day 1 of the preliminary hearing?

[34] Accused persons are not entitled to remain passive in the face of delay in the hopes of avoiding prosecution for offences while the evidence in the cases against them grows stale over time, or there is ultimately a stay for delay. Where accused persons benefit from their own delay causing conduct, such a result operates to the detriment of the public and the system of justice as a whole. Accordingly any delay attributable to that conduct is subtracted from the total delay. [11]

[35] I find that the defence delay attributable to the defendant is 149 days (5 months) and is comprised of the following:

35 days for the periods January 9 – February 6 and February 13 – February 20, 2015. Delay will be attributed to the defence where the defence refuses to set a preliminary inquiry date on the basis of outstanding disclosure. [12] The applicant received all disclosure needed to conduct a preliminary inquiry by January 9, 2015 (this was conceded by applicant’s counsel on February 20, 2015). Rather than schedule a preliminary inquiry, the applicant requested that the matter be adjourned to February 6, 2015. The court did not have court time available on the 6th and Mr. Ellis was unavailable on the 13th so the matter was traversed to February 20th.

• 35 days for the period February 20 to March 27, 2015. The applicant requested an adjournment so as to schedule a resolution meeting. This was the same reason given for the adjournment request on September 5, 2014. No reason was given why a preliminary inquiry date could not be scheduled.

• 14 days for the period March 27 to April 10, 2015. On March 27th applicant’s counsel requested a two-week adjournment for further instructions from his client and to set a date. Concerned with the time the matter had been outstanding, the Court ordered that the matter proceed to case management. Despite the assurances given to court on February 20th no resolution meeting had yet been conducted.

• 18 days for the period April 20 to May 8, 2015. Counsel for the applicant does not appear on April 20th (no reason stated on the record) and the matter was adjourned to May 8th.

• 47 days for the period May 8th to June 17th and June 19th to 26th. During this period, there were 7 court attendances. On May 8th, applicant’s counsel advised the court that the applicant intended to consent to committal and that the statement of issues would be completed by May 15th and requested a one-week adjournment. On May 15th, the applicant requested a further one-week adjournment to narrow his list of witnesses. On May 22nd, the applicant requested a further adjournment to June 5th to allow Crown counsel to review a revised and narrowed witness list provided earlier that morning. On June 5th the matter was adjourned to June 17th to accommodate a focus hearing scheduled for that same date by applicant’s counsel. On June 17th the matter was traversed 2 days to allow the Crown to prepare a trial readiness certificate based on confirmation of the witness list provided by the applicant. On June 19th applicant’s counsel mistakenly scheduled a trial date rather than a preliminary inquiry date and the matter was adjourned to June 26th. On June 26, 2015, the matter was, at long last, scheduled for a one-day “discovery” preliminary hearing for October 28, 2015.

[36] The statements of the civilian witnesses required by defence for the consent preliminary hearing were disclosed and in the applicant’s possession by October 23, 2014. Moreover, the bulk of disclosure had been completed by January 9, 2015.

[37] The applicant argued that a Crown resolution meeting was needed before scheduling a preliminary hearing date. The applicant requested an adjournment on October 24, 2014 for two and a half months to January 9, 2015 to review disclosure. No reason was given for a resolution meeting not taking place during this 77 day period. The one-day discovery preliminary inquiry should have been scheduled and the resolution meeting and judicial pretrial conducted pending the return date for the preliminary inquiry. It is a burdensome practice that has developed whereby all interim and non-binding steps are completed before a preliminary inquiry date is scheduled. No good reason for this approach has been provided particularly when preliminary hearing dates are not readily available upon request. To my knowledge, it is not a practice mandated by statute. In this post-Jordan era any such practice should be discouraged particularly in circumstances where the defendant is consenting to committal. Once disclosure had been provided, the applicant took a laissez faire attitude toward setting a date for the preliminary hearing. All of the requests for adjournment were at the behest of the defendant and therefore constitute defence-delay. It matters not that the Crown did not oppose the adjournment requests.

What is the defence delay attributable to the applicant for the period post-Day 1 of the preliminary hearing?

[38] Because the aggregate delay attributable to the defence for the period prior to scheduling the preliminary hearing reduces the total delay to a net delay below the presumptive ceiling (28 months and 7 days), it is not necessary to consider the delay attributable to the defence for the period commencing on the first day of the preliminary inquiry and ending on the date of consent to committal (October 28, 2015 to November 16, 2016). However, this analysis will be undertaken to underscore the delay attributable to the applicant.

[39] It is concerning that Mr. Eldogdog’s arrest prompted Mr. Garcia to take an entirely different approach to the preliminary inquiry. Mr. Ellis stressed that it is the applicant’s right to investigate all of the evidence and participate in his co-accused’s preliminary inquiry should he so choose. Moreover, he submits that a failure to do so constitutes negligence. I tend to agree with that position. However, for purposes of this s. 11(b) analysis the applicant is not at liberty to defer giving his consent to committal so as to receive the benefits associated with participating in Mr. Eldogdog’s preliminary inquiry only to turn around and cry foul about the delay associated with that decision. Such an argument is disingenuous. It should be noted that at no point during the preliminary inquiry did the applicant raise concerns about the mounting delay. Not only was he content to go along for the ride on the “Eldogdog train”, he had a hand in adding to the length of the trip. For example, the preliminary inquiry could have been rescheduled to recommence on March 11, 2016 but applicant’s counsel was unavailable on that date. The next mutually available date was May 2, 2016 – 52 days later. By May 2nd all evidence was before the court save and except for the evidence of Detective Addley relating to the analysis of Mr. Eldogdog’s cell phone which evidence was completely unrelated to the case against Mr. Garcia. Mr. Garcia was content to hold off on consenting to committal and participate in the preliminary inquiry which he acknowledged “the vast majority of the evidence called at the preliminary hearing related to [Mr. Eldogdog]” and “all of the continuing dates for the preliminary hearing were at the request of [Mr. Eldogdog]”. He was looking to have it both ways. He cannot now argue his s. 11(b) rights were violated.

[40] There is no reason for the applicant failing to consent to committal on May 2, 2016. All of the evidence relating to his charges was known to him by that date. Had he consented to committal, he would have reduced the delay post-Day 1 of the preliminary hearing by 6 months.

[41] The Crown has conceded that in the face of mounting delays it, too, did not proceed to severance and therefore suggests that only one half of the 6 month delay be attributable to the applicant. Factoring in this additional 3 months of defence delay reduces the remaining delay to 25 months – well below the presumptive ceiling of 30 months. I find the net delay is, therefore, not presumptively unreasonable.

Exceptional Circumstances

[42] Should I be incorrect in my attribution of delay to the defendant, and the delay does, in fact, exceed the presumptive ceiling, I find there are exceptional circumstances on the basis of complexity of the case which make the delay reasonable in all of the circumstances. The matter is complex due to the allegations of a joint marijuana extraction operation and the joinder of the charges. On two separate occasions, applicant’s counsel acknowledged the matter was “complex”. [13]

[43] Had the pair not been charged jointly, the discovery preliminary hearing against Mr. Garcia would have proceeded as scheduled on October 28, 2015 with his consent to committal following shortly thereafter. His first appearance in the SCJ would have taken place before the end of 2015. Instead, the involvement of Mr. Eldogdog which gave Mr. Garcia an inherent right to participate in his preliminary inquiry, lengthened the time the matter was in the OCJ by more than 12 months.

[44] Proceeding against Mr. Garcia and Mr. Eldogdog jointly has added to the length of delay but has also added to the complexity. The case law is clear that some additional delay will be tolerated where the accused is charged jointly and it is in the interests of justice to try all accused together. [14]

[45] However, the Crown must remain vigilant that its decision to proceed jointly does not compromise the subsection 11(b) Charter rights of either accused. [15] For reasons I find persuasive, the Crown elected to proceed against Mr. Garcia and Mr. Eldogdog, jointly. [16] Where the Crown shows that it has done what it reasonably can do to mitigate the delays associated with such a case, a prosecution involving multiple accused persons is a factor which increases the complexity of a case and justifies a lengthier time to trial. [17] The Crown recognized that delay was becoming an issue with respect to the charges against Mr. Garcia and severed the accused. Since severing the two accused, the matter has proceeded swiftly to trial scheduling in the SCJ.

[46] The applicant appears to concede the case is complex and, moreover, that it was appropriate to proceed against both he and Mr. Eldogdog, jointly. In his affidavit sworn in support of this application Mr. Garcia deposes as follows:

11. I am not aware of any application to separate me from my co-accused. I have no knowledge about how this occurred and I did not consent to being tried separately from my co-accused. (emphasis added)

[47] In fact, Mr. Garcia indicated his intention to seek a joinder of the indictments.

[48] The applicant testified on the application that he preferred to be prosecuted jointly with Mr. Eldogdog and that severance of the indictments is prejudicial to him. Mr. Garcia cannot now complain post-Jordan that the delay occasioned by the Crown proceeding against the applicant and Mr. Eldogdog jointly while the case was in the OCJ was unreasonable in circumstances where he admits that proceeding against him and Mr. Eldogdog is in the interests of justice and to his benefit.

Transitional Case

[49] This is a transitional case. Since the remaining delay does not exceed the presumptive ceiling, the defence must satisfy the court that even though the remaining delay falls below the ceiling, the case is nonetheless a clear one of unreasonable delay. To establish this, the defence must satisfy both of the following criteria:

(1) That the defence took meaningful steps demonstrating a sustained effort to expedite the proceedings; and (2) That the case took markedly longer than it reasonably should have. [18]

[50] Where the presumptive ceilings have not been exceeded, a stay will be rare and granted “only in clear cases.” Where the defence has not established both requirements stated above, “the s. 11(b) application must fail”. [19]

[51] Under the new Jordan framework, section 11(b) continues to operate as a shield and not as a “sword to frustrate the ends of justice”. Additionally, where the delay falls below the presumptive ceiling and the case was in the system prior to the decision in Jordan, that given the level of institutional delay tolerated under the previous approach, a stay of proceedings below the ceiling will be even more difficult to obtain for cases currently in the system. [20]

[52] This case is far from being a “clear case”. The applicant could have requested severance at any point during the 6 month period from May 2, 2016 to November 16, 2016 but instead was content to sit back and allow Mr. Eldogdog to control the pace and direction of the preliminary inquiry. Even the intervening decision in Jordan released July 8, 2016 did not appear to spur the applicant into action. It was not until February 2017 that the applicant made known his intention to bring this application. The evidence does not support a finding that the applicant took meaningful steps demonstrating a sustained effort to expedite these proceedings.

[53] In the result, I find the applicant has failed to meet his evidentiary burden.

Disposition

[54] Application dismissed.

“Justice A. K. Mitchell” A.K. Mitchell J.

Released: June 29, 2017

[1] R. v. Jordan, 2016 SCC 27, [2016] S.C.J. No. 27. [2] R. v. Morin, [1992] 1 S.C.R. 771. [3] 2016 ONCA 704, [2016] O.J. No. 5005 (C.A.) [4] The date the charge was filed and not the date of arrest or offence date. [5] The date on which a verdict is reached. [6] Supra, at paras. 42 and 43. [7] Ibid. at para. 44. [8] Jordan, at para. 65 [9] Ibid. at para. 69. [10] Ibid. at para. 51. [11] Jordan, supra, at paras. 21, 49 and 60. [12] R. v. Kovacs-Tatar, 2004 CarswellOnt 4805 (C.A.) at para 47. [13] On October 24, 2014, the applicant appeared for an administrative court appearance, and requested a two and a half month adjournment for the purpose of receiving and reviewing disclosure as this was a “complex case”. On January 9, 2015 the applicant reiterated that this was a “complex case”. [14] R. v Singh, 2016 BCCA 427 at paras. 80-82. [15] R. v. Manasseri, 2016 ONCA 703, [2016] O.J. No. 5004 (C.A.) at para. 373. [16] The Crown argues both co-accused carried on a marijuana extraction operation as a joint venture. [17] R. v. Singh, supra, at paras. 89-91. [18] Jordan, supra, at paras. 82-83. [19] Ibid. at paras. 82-83. [20] Ibid, at paras. 21, 83 and 101; Morin, supra, at page 801.